22 FLRA No. 51
NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION, MEBA, AFL-CIO
Union
and
DEPARTMENT OF COMMERCE
NATIONAL WEATHER SERVICE
Agency
Case No. 0-NG-1116
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
following Union proposal which arose during the course of negotiations
on ground rules for a new collective bargaining agreement between the
parties:
Travel and per diem will be granted only to those bargaining
unit employees identified in accordance with this agreement whose
official duty station is outside the Washington, D.C. commuting
area. On Thursday, Friday and Saturday of the previous week, team
members will be granted official time for preparation if he/she
would normally be in a duty status. No per diem will be paid for
preparation time. (Only the underscored portion is in dispute.)
II. Position of the Parties
The Agency essentially contends that the proposal is outside the
scope of bargaining because it does not concern conditions of employment
within the meaning of section 7103(a)(14) of the Statute. In support of
this contention it argues that the subject of travel expenses is
specifically provided for by the Travel Expense Act, 5 U.S.C. Sections
5701, et seq. In addition, the Agency contends that the disputed part
of the proposal is inconsistent with certain Comptroller General
decisions interpreting and applying the Travel Expense Act.
The Union states that the intent of the disputed portion of the
proposal is to provide its negotiators, who are employed in the
bargaining unit throughout the country, travel and per diem expenses
when they come to Washington, D.C. to negotiate over a new collective
bargaining agreement. The Union waived its right to file a response to
the Agency's statement of position.
III. Analysis
Subsequent to the filings in this case the Authority issued its
decision in National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for
review filed sub nom. Department of the Treasury, U.S. Customs Service
v. FLRA, No. 86-1198 (D.C. Cir., March 27, 1986). There the Authority
rejected the agency's contention that the proposal in that case, which
required the payment of travel and per diem expenses for employees
serving as union negotiators, involved a matter specifically provided
for by Federal statute so as to be expected from the definition of
conditions of employment. For the reasons and cases cited in U.S.
Customs Service at 7-8, the Authority also rejects this same contention
with respect to the present case. In addition, as we explained more
fully in that decision, the Comptroller General, who administers and
interprets the Travel Expense Act, has ruled that an agency is not
precluded from making payment of otherwise proper travel expenses and
per diem allowances to union representatives upon a determination that
it serves the convenience of the agency or is otherwise in the primary
interest of the Government. See 46 Comp. Gen. 21 (1966). The Authority
found that determinations concerning whether to make such payments are
within the discretionary administrative authority of an agency and that
existing Authority precedent obligates an agency to exercise that
discretion through negotiation unless precluded by regulatory or
statutory provisions.
In U.S. Customs Service we relied upon the union's explanation that
its proposal sought agreement as to what categories of union activities
shall be construed to be in the primary interest of the Government. The
union specifically stated that once a determination is made that an
activity is in the primary interest of the Government, "of course, all
the specific Travel Regulations apply." U.S. Customs Service at 7. This
factor was crucial in our decision that the proposal in that case was
negotiable because it was clear that the proposal was to be implemented
in a manner consistent with governing statutory and regulatory
requirements. For example, the proposal was not intended to require the
agency to authorize either specific travel or expenses which did not
comport with the regulatory requirements and restrictions stated in the
Federal Travel Regulations (FTRs). The proposal was not intended to,
and could not, require the Agency to use specific authorization
procedures and practices relating to actual travel which conflicted with
the FTRs. It would not foreclose individual determinations regarding
the propriety under the FTRs of authorizing particular travel and
expenses. Moreover, to the extent that case-by-case determinations are
required under law and regulation, the proposal would not be
inconsistent with such procedures. On this basis, the Authority
rejected the contention of the agency in that case that the proposal was
inconsistent with Federal law and Government-wide regulations.
The language of the proposal in this case is similar to the one held
negotiable in U.S. Customs Service. However, for the following reason
the Authority must find this proposal outside the duty to bargain. In
its statement of position, in addition to its other contentions, the
Agency also states that the proposal cannot be read as a demand to
negotiate its determination of whether the payment of travel and per
diem is in the "primary interest" of the Government, the determination
required by the Comptroller General in 46 Comp. Gen. 21 (1966).
Although the Union was given the opportunities normally afforded parties
in accordance with the Authority's Rules and Regulations, it
specifically waived its right to file a response to the Agency's
contentions. The Union thereby failed to rebut the Agency's
interpretation that the proposal is not intended as a demand to
negotiate the Agency's determination of whether the payment of travel
and per diem is in the primary interest of the Government. Under these
particular circumstances, the Authority is constrained to accept the
Agency's interpretation as to the meaning of the proposal. If the
Union's intent is different than established in the record of this case,
then it may, of course, revise its proposal at an appropriate time to
more accurately reflect its intent so as to render the proposal
negotiable. See, for example, National Treasury Employees Union and
Department of the Treasury, Internal Revenue Service, 21 FLRA No. 19
(1986), petition for review filed sub nom. Department of the Treasury,
Internal Revenue Service v. FLRA, No. 86-1290 (D.C. Cir. May 19, 1986);
American Federation of Government Employees, AFL-CIO, National Council
of Federal Grain Inspection Locals and U.S. Department of Agriculture,
Federal Grain Inspection Service, 21 FLRA No. 21 (1986), petition for
review filed sub nom. Department of Agriculture, Federal Grain
Inspection Service v. FLRA, No. 86-1295 (D.C. Cir. May 21, 1986).
IV. Conclusion
Based on the reasons and cases cited in U.S. Customs Service, 21 FLRA
No. 2 (1986), the Authority finds that the Union proposal concerns a
condition of employment. However, based on the foregoing analysis, the
Authority finds that the proposal is inconsistent with law and
Government-wide regulations. Therefore, the proposal is outside the
duty to bargain.
V. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
regulations IT IS ORDERED that the Union's petition for review be, and
it hereby is dismissed.
Issued, Washington, D.C., July 10, 1986.
/s/ Jerry L Calhoun, Chairman
/s/ Henry B. Frazier III, Member